Citation NR: 9714605
Decision Date: 04/29/97 Archive Date: 05/06/97
DOCKET NO. 94-22 325 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for residuals of a
right shoulder injury.
2. Entitlement to service connection for frostbite of the
feet.
3. Entitlement to an evaluation in excess of 10 percent for
residuals of a shell fragment wound to the head.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jeffrey J. Schueler, Associate Counsel
INTRODUCTION
The veteran served on active duty for more than eight years
and nine months, including periods from February 1968 to
February 1970 and from June 1973 to June 1978.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) New Orleans, Louisiana, Regional Office
(RO). These determinations denied the veteran’s claims of
entitlement to service connection for residuals of a right
shoulder injury and frostbite of the feet and his claim of
entitlement to a compensable evaluation for residuals of a
shell fragment wound to the head.
In June 1995, the Board remanded to the RO the claim of
entitlement to a compensable evaluation for residuals of a
shell fragment wound to the head for further development and
deferred review of the remaining issues. After the necessary
development, the RO, in an October 1996 rating action,
granted a 10 percent evaluation for the veteran’s service-
connected residuals of a shell fragment wound to the head.
The issues are, thus, as stated on the title page of this
decision.
The claim of entitlement to service connection for frostbite
of the feet will be addressed in the remand portion of this
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he was in a motor vehicle accident
in service in which he injured his right shoulder. He
maintains that he currently has pain and impairment of the
right shoulder that is a direct result of his in-service
injury. The veteran also contends that he has severe
headaches resulting in severe interference in his daily
activities. He asserts that these headaches are a residual
of his service-connected disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for service
connection for a right shoulder injury is not well grounded.
It is the decision of the Board that the record supports a
grant of entitlement to an increased evaluation of 30 percent
for residuals of a shell fragment wound to the head.
FINDINGS OF FACT
1. The claim of entitlement to service connection for a
right shoulder disorder is not supported by cognizable
evidence showing that the claim is plausible or capable of
substantiation.
2. Residuals of a shell fragment wound to the head are
productive of characteristic prostrating headache attacks.
CONCLUSIONS OF LAW
1. The claim for service connection for a right shoulder
injury is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1996).
2. The criteria for an increased evaluation of 30 percent
for residuals of a shell fragment wound to the head have been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1996);
38 C.F.R. §§ 4.2, 4.7, 4.10, 4.118, 4.124(a), Diagnostic
Codes 7800, 8100 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for Right Shoulder Injury
Factual Background
The medical records from the veteran’s first period of active
service show that the veteran received a shell fragment wound
in June 1969 in the head and right back without nerve or
artery involvement. The veteran’s January 1970 service
separation medical record, prepared at separation from his
first period of active duty, showed no complaints, treatment,
or findings regarding a right shoulder injury. The August
1971 service enlistment examination, prepared when the
veteran entered his second period of active service, reveals
no complaints, treatment, or findings regarding a right
shoulder injury.
The examiner in an August 1975 service clinical record noted
a one month history of bilateral shoulder pain, a constant
achiness. X-rays were normal, and the impression was
cervical strain. A November 1976 service clinical record
noted a possible fracture of the right arm, with the veteran
stating that he was in a jeep accident. The pain radiated
six inches above and below the elbow. In December 1976, the
veteran was placed on limited duty due to rupture/hematoma of
the right bicep, with no use of the right arm for 30 days.
In a June 1978 service separation examination report, it was
noted that the veteran had pain in the right arm and a scar
on the right arm.
Right shoulder pain since service was noted in a December
1991 VA clinical record. In a January to February 1992 VA
psychiatric hospitalization report, in discussing the
veteran’s shell fragment wound, the examiner noted that the
veteran still had chronic pain in the right shoulder off and
on. A February 1992 VA clinical record indicated a prior
medical history of right shoulder surgery in 1977. A March
1992 VA clinical record shows complaints of right shoulder
pain for six years. The impression was rule out arthritis of
right shoulder.
Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1996). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence of a
well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim
is a plausible claim that is meritorious on its own or
capable of substantiation. See Murphy, at 81. An allegation
of a disorder that is service connected is not sufficient;
the veteran must submit evidence in support of a claim that
would “justify a belief by a fair and impartial individual
that the claim is plausible.” See 38 U.S.C.A. § 5107(a);
Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality
and quantity of the evidence required to meet this statutory
burden of necessity will depend upon the issue presented by
the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498 (1995).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit,
5 Vet.App. at 93. Lay assertions of medical causation cannot
constitute evidence to render a claim well grounded under 38
U.S.C.A. § 5107(a); if no cognizable evidence is submitted to
support a claim, the claim cannot be well grounded. Id.
The November 1976 service clinical record does show that the
veteran sustained a right arm injury in a jeep accident, and
that at service separation in June 1978 the veteran had pain
and a scar on the right arm. This evidence satisfies one
element of a well grounded claim, that of evidence of an
injury in service. Caluza, at 506. The post-service medical
evidence summarized above documents pain from December 1991
through March 1992. There is also an impression of rule out
arthritis. Even if this evidence established a current right
shoulder disorder, there is no competent medical evidence of
a nexus between the in-service injury and the current
disorder. Id.
The post-service evidence documents pain and possible
arthritis, but does not attempt to link these current
findings to the veteran’s jeep-accident injury during
service. The comments regarding the veteran’s right shoulder
pain in the January to February 1992 VA psychiatric
hospitalization report are part of a discussion of the
veteran’s shell fragment wounds in his first period of
service. Any evidence thus resulting from this discussion as
to a relationship between the current right shoulder pain and
service would by necessity entail residuals of the service-
connected shell fragment wound rather than any separate
injury resulting from the jeep accident. The service medical
records show no indication that the veteran had right
shoulder surgery in 1977 as alluded to by the VA examiner’s
comments as to past history in the February 1992 VA clinical
record. Finally, the six year history of right shoulder pain
noted in the March 1992 VA clinical record places such pain
no earlier than 1986, eight years after the veteran’s
separation from his second period of service.
In the absence of competent medical evidence of a nexus
between the in-service injury and a current disability, the
claim is not well grounded. Because the claim is not well
grounded, VA is under no duty to assist the veteran in
further development of the claim. 38 U.S.C.A. § 5107(a);
Murphy, 1 Vet.App. at 81.
Although where claims are not well grounded VA does not have
a statutory duty to assist the claimant in developing facts
pertinent to the claim, VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
the application. This obligation depends upon the particular
facts of the case and the extent to which VA has advised the
claimant of the evidence necessary to be submitted with a VA
benefits claims. Robinette v. Brown, 8 Vet.App. 69 (1995)
In this case, the RO fulfilled its obligation under
38 U.S.C.A. § 5103(a) (West 1991) in the February 1992
statement of the case and in the May 1993 supplemental
statement of the case in which the appellant was informed
that the reason for the denial of the claim was that a right
shoulder injury in service resolved prior to separation.
Furthermore, by this decision, the Board is informing the
appellant of the evidence which is lacking and that which is
necessary to make the claim well-grounded.
Although the Board considered and denied the appellant’s
claim on a ground different from that of the RO, which denied
the claim on the merits, the appellant has not been
prejudiced by the decision. This is because in assuming that
the claim was well grounded, the RO accorded the appellant
greater consideration than his claim in fact warranted under
the circumstances. Bernard v. Brown, 4 Vet.App. 384 (1993).
In light of the implausibility of the appellant’s claim and
the failure to meet his initial burden in the adjudication
process, the Board concludes that he has not been prejudiced
by the decision to deny his appeal for entitlement to service
connection for a right shoulder disorder. 38 U.S.C.A.
§ 5107(a).
II. Increased Evaluation for Residuals of Head Injury
Factual Background
Historically, the veteran was wounded in service in June 1969
in Vietnam by shell fragments entering the occipital area in
the back of his head. The head wound was debrided and
sutured. Recovery went well and the sutures were removed from
the scalp. The final diagnosis was fragment wound to the
posterior scalp without nerve or artery involvement. August
1969 and January 1970 service clinical records showed
complaints of headaches. The January 1970 service separation
examination report noted the head injury with frequent
headaches since then, and the veteran reported that he had
had frequent or severe headaches.
The examiner at the August 1970 VA examination described a
small scalp scar over the external occipital protuberance and
recurrent dizziness. Service connection was granted in
September 1970 for residuals of a wound to the mid-occipital
area of the head, and a noncompensable evaluation was
assigned.
The veteran reenlisted and noted at his August 1971 service
entrance examination report that he had had a head injury.
He did not report frequent or severe headaches. A July 1975
service clinical record noted pain in the back of the neck
with associated headaches for two weeks. The examiner noted
tension headaches, and commented that the veteran had
numerous family problems. Headaches were not noted on the
June 1978 service separation examination report.
The veteran thereafter claimed headaches, but the RO in a
June 1991 rating action denied service connection for
headaches as they were not noted on the August 1970 VA
examination. The noncompensable evaluation for the residuals
of the shell fragment wound disability was continued in a
February 1992 rating action; the evaluation was increased to
10 percent disabling in an October 1996 rating action. The
veteran seeks an evaluation in excess of 10 percent
disabling.
In a December 1991 VA clinical record, it was noted that the
veteran complained of headaches.
In a December 1995 VA examination report, the examiner
recounted the veteran’s history, including headaches during
service that had persisted ever since. It was noted that the
veteran had daily headaches, at times two to three per day,
felt at the back of the head and radiating to the side and
the right shoulder. A severe headache could last for about
one to two hours and the veteran usually took ibuprofen for
relief of the headaches. But it was further noted that there
was almost constantly a nagging pain. The examiner reported
that the veteran did not have any associated numbness, double
vision, or any other trouble hearing, nor difficulty with
speech or any kind of visual problems.
It was noted that the veteran felt nauseated but had never
had any vomiting. Along with the headache, the veteran felt
tightness and pain in the neck that was felt in the right
shoulder. The report noted that the veteran worked for a
furniture company and that the headaches occasionally
interfered with his work in which case he usually sat down
and rested for an hour. If a headache occurred when he was
driving, he had to pull over and take Ibuprofen until the
headache subsided.
Examination showed neck movements unrestricted and not
eliciting pain. The cranial nerves, motor system, sensory
system, and cerebral systems were all intact, and the veteran
had normal stance and gait. The impression was status post
shrapnel wound to the occipital area with post-traumatic
headache, neck pain, and shoulder pain. The headaches were
described as constant and interfering with the veteran’s day-
to-day activities when they were severe.
Pertinent Laws and Regulations
Disability evaluations are determined by the application of a
schedule of ratings based on average impairment in earning
capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In
evaluating claims for increased ratings, the Board must
evaluate the veteran’s condition with a critical eye towards
the lack of usefulness of the body or system in question to
self support. 38 C.F.R. § 4.10.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do
not give past medical reports precedence over current
findings. Francisco v. Brown, 7 Vet.App. 55 (1995).
The veteran is service connected for residuals of a shell
fragment wound of the mid-occipital area of the head with
headaches. The disability is assigned a 10 percent
evaluation analogously under Diagnostic Codes 7800 and 8100.
Under Diagnostic Code 7800 for disfiguring scars of the head,
face or neck, a 10 percent evaluation is assigned for scars
characterized as “[m]oderate; disfiguring.” A 30 percent
evaluation may be assigned where the evidence shows the scar
to be “[s]evere, especially if producing a marked and
unsightly deformity of eyelids, lips, or auricles.” A 50
percent evaluation may be warranted where the scar is
characterized as “[c]omplete or exceptionally repugnant
deformity of one side of face or marked or repugnant
bilateral disfigurement.” 38 C.F.R. § 4.118.
Under Diagnostic Code 8100 for migraine, a 10 percent
evaluation is assigned for headaches “[w]ith characteristic
prostrating attacks averaging one in two months over last
several months.” A 30 percent evaluation may be assigned
where there are headaches [w]ith characteristic prostrating
attacks occurring on an average once a month over last
several months.” A 50 percent evaluation may be warranted if
the evidence shows headaches characterized “[w]ith very
frequent completely prostrating and prolonged attacks
productive of severe economic inadaptability.” 38 C.F.R.
§ 4.124a.
Analysis
The August 1970 VA examination clearly reports the scar
resulting from the shell fragment wound to the occipital area
in the back of the head to be not productive of impairment.
The VA examiner described the scar as small, and there was no
indication that the scar was disfiguring or produced
deformity of the eyelids, lips, or auricles, or of the face.
The December 1995 VA examination provided no indication of
any change in the characteristics of the scar or of any
disfiguring qualities. The scar was to the back of the head,
not to visible parts of the head such as the face, and thus
an evaluation in excess of 10 percent is not available in
this case under the provisions of Diagnostic Code 7800.
As to the headache residuals associated with the veteran’s
in-service injury, the Board notes that Diagnostic Code 8100
concerns evaluation of migraine headaches and is used in this
case analogously to evaluate the veteran’s headaches
residuals. For the next higher evaluation, the rating
criteria require “characteristic prostrating attacks” on an
average basis of once per month over several months.
38 C.F.R. § 4.124a. The December 1995 VA examination report
essentially shows that the veteran has nagging, constant
headache pain with daily “severe” headaches lasting for one
to two hours about two to three times per day. The VA
examiner in December 1995 did report that these headaches,
when severe, did “interfere” with the veteran’s daily
activities, including work and driving.
In view of the above description of the “interference” in
daily activities, both industrial and nonindustrial, the
Board finds that a question has been raised as to which of
two evaluations would more properly classify the severity of
the appellant’s headaches associated with his shell fragment
injury. The Board is of the opinion that the appellant’s
currently disabling headaches more closely approximate the
level of impairment contemplated in the next higher
evaluation of 30 under diagnostic code 8100 for migraines.
38 C.F.R. § 4.7.
In this regard the veteran may be said to experience
prostrating headache symptomatology in view of the fact that
he must cease working when severe headaches come on. He is
also forced to cease driving and other activities during the
course of his daily life style. Surely the recurrent and
periodic need to repeatedly wait out the course of severely
disabling headache symptomatology reflects prostrating
headache symptomatology contemplated in the next higher
evaluation of 30 percent.
While the Board has determined that residuals of a shell
fragment wound to the head warrant assignment of the next
higher evaluation of 30 percent, the Board does not find that
the headaches reflecting the subject injury residuals are
productive of completely prostrating and prolonged attacks as
to produce severe economic inadaptability. In this regard,
the Board notes that the appellant has not had to terminate
his regular employment on account of his headache
symptomatology, and has not suffered from severe economic
inadaptability as a consequence thereof. Accordingly, the
criteria for the maximum schedular evaluation of 50 percent
have not been satisfied at this time.
In view of the foregoing discussion, the Board finds that the
evidentiary record supports a grant of entitlement to an
increased evaluation of not more than 30 percent for
residuals of a shell fragment wound to the head with
application of all pertinent governing criteria. 38 U.S.C.A.
§§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.10, 4.118, 4.124(a),
Diagnostic Codes 7800, 8100.
ORDER
Entitlement to service connection for residuals of a right
shoulder injury is denied.
Entitlement to an increased evaluation of 30 percent for
residuals of a shell fragment wound to the head is granted,
subject to governing criteria applicable to the payment of
monetary benefits.
REMAND
Before reaching the question of service connection for
frostbite of the feet, or even that of whether the veteran’s
claim is well grounded, the Board notes that VA has an
obligation under 38 U.S.C.A. § 5103(a) independent of the
duty to assist. See Robinette v. Brown, 8 Vet.App. 69
(1995). The Robinette opinion held that § 5103(a) imposes an
obligation upon VA to notify an individual of what is
necessary to complete the application in the limited
circumstances where there is an incomplete application which
references other known and existing evidence. Epps v. Brown,
9 Vet.App. 341 (1996). See also Savage v. Brown, 9 Vet.App.
521 (1996) (no duty arose under Robinette because VA was not
on notice of existing evidence which could well ground the
claim but which had not been submitted).
In this case, VA is on notice of possible additional evidence
that may be in its possession that could be advantageous to
the veteran’s claim. The service medical records for both
periods of service show no complaints, findings, or treatment
for frostbite during service. In his January 1992 statement,
though, the veteran asserted that he was stationed in
Fairbanks, Alaska, in 1970 with the 2nd Brigade at Fort
Wainwright. In a March 1992 VA clinical record, it was noted
that the veteran complained of pain in his feet progressively
worsening, with hospitalization in Alaska for about one week.
Service personnel records show that the veteran was stationed
in Alaska from October 1971 to July 1973 with the 2nd
Infantry Brigade. The veteran’s service medical records have
been obtained, but in providing these records the National
Personnel Records Center (NPRC) also asked for the specific
name of any service hospital so that a clinical records
search could be conducted. The service medical records of
record do not contain service hospital records. A search
should be made for records prepared at the Fort Wainwright
hospital and at any other medical facilities at Fort
Wainwright regarding treatment of the veteran for his claimed
frostbite of the feet.
Therefore, pursuant to VA’s duty to assist the appellant in
the development of facts pertinent to his claim under
38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1996), the
Board is deferring adjudication of the issue of entitlement
to service connection for frostbite of the feet pending a
remand of the case to the RO for further development as
follows:
1. The RO should make another attempt to
secure the veteran's service medical
records through official channels. The
RO should provide to NPRC the information
discussed above concerning the veteran’s
possible treatment for frostbite of the
feet at service medical facilities at
Fort Wainwright and request that NPRC
conduct a thorough search of its records
and forward copies of any records found
to the RO. All evidence obtained should
be associated with the claims file. The
RO should also request that if NPRC’s
search is not productive of any records,
or if further records may be obtained
from another agency, that NPRC so inform
the RO.
2. After undertaking any development
deemed appropriate in addition to that
specified above, the RO should re-
adjudicate the issue of entitlement to
service connection for frostbite of the
feet.
If the benefit sought on appeal is not granted to the
veteran’s satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded. Thereafter, the case should be
returned to the Board for final appellate review, if
otherwise in order. By this remand, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran unless he is otherwise notified by
the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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